Documents on a hard drive do not a Will make

Early this week we posted about the Court interpretation of an iPhone Will. An earlier post discussed a document saved on a USB drive that was admitted into probate. However there must be directions about a significant part of the estate otherwise a Court will not admit the document to probate.

Dennis Warlum died in June 2011 aged 82. Two children, a number of grandchildren, as well as his de facto spouse Eunice Tristram survive him.

After Dennis’s death two documents were found saved on his computer with the description “willcalcs.xls” last modified in May 2008, and “will.doc.” last modified in June 2008. Dennis did not mention to Eunice that he had made a will.

Eunice sought determination from the Court as to whether Dennis died intestate, or if the documents found on his computer after his death should be declared to be a document or documents that the deceased intended to form his will.

In order for probate to be granted the court must be satisfied that the deceased intended that an informal document should operate as their will. A draft document is not acceptable as it lacks the required intention.

It could be argued that the documents on Dennis’s hard drive  appear to reflect his then thoughts as to how the assets might be divided. However the Court believed that there are words that clearly demonstrate that Dennis did not consider that he had completed the task of making a will or that fully stated his testamentary intentions. In some instances it appears Dennis was unclear as to the distribution of his estate particularly what would occur if any of the potential beneficiaries did not survive him.

Dennis did not tell his son, Barry, that he had made a will. However he had a conversation with his daughter, Carol, at the beginning of 2011 where he stated

‘I just want you to know what my wishes are. I have changed my will.’

Dennis did not say where his will was and did not mention who he wished to be executor of his estate. Carol believes that if her father had made a valid will he would have told her where it was.

The Court did not accept that Dennis’s statement “I have changed my will.” was strong enough to show that he intended either of the two documents to be his Will; Particularly as neither of the documents had been modified since 2008.

The Court believed that considering the evidence as a whole, Dennis was advising his daughter of changes to his thinking as to how he intended to leave his estate.

It was submitted to the Court that in 2006 the deceased had consulted a financial adviser in relation to estate planning. The adviser made notes that indicated that at the time no formal Will existed.

The Court was not satisfied that either document formed the last will of the deceased, and declared that Dennis died intestate. Costs were paid out of the estate.






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